Citation Nr: 0306515
Decision Date: 04/03/03 Archive Date: 04/10/03
DOCKET NO. 00-22 698A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
chronic bilateral otitis media with deafness.
(The issues of entitlement to service connection for chronic
bilateral otitis media with deafness and entitlement to
service connection for tinnitus will be the subject of a
future decision.)
REPRESENTATION
Appellant represented by: Pennsylvania Department of
Military Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
H. Roberts, Counsel
INTRODUCTION
The veteran served on active duty from November 1948 to May
1950.
This appeal arises before the Board of Veterans' Appeals
(Board) from a January 2002 rating decision of the
Philadelphia, Pennsylvania, Regional Office (RO) of the
Department of Veterans Affairs (VA), which denied service
connection for chronic bilateral otitis media with deafness.
The veteran's claims of service connection for chronic
bilateral otitis media with deafness and service connection
for tinnitus will be the subject of a later decision. The
Board is undertaking additional development on those issues,
pursuant to authority granted by 38 C.F.R. § 19.9(a)(2).
When that action is completed, the Board will provide notice
of the development as required by 38 C.F.R. § 20.903. After
giving the notice and reviewing any response to the notice,
the Board will prepare a separate decision addressing those
issues.
FINDINGS OF FACT
1. The September 1950 rating decision that denied service
connection for chronic bilateral otitis media with deafness
is final.
2. The evidence submitted subsequent to the September 1950
rating decision bears directly and substantially upon the
specific matter under consideration, and by itself and in
connection with the evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the veteran's claim of entitlement to
service connection for chronic bilateral otitis media with
deafness.
CONCLUSIONS OF LAW
1. The September 1950 rating decision, which denied service
connection for chronic bilateral otitis media with deafness,
is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104
(2002).
2. The evidence received subsequent to the September 1950
rating decision is new and material and serves to reopen the
veteran's claim of entitlement to service connection for
chronic bilateral otitis media with deafness. 38 U.S.C.A.
§§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act (VCAA) was enacted on
November 9, 2000. The VCAA eliminated the well-grounded-
claim requirement and modified the Secretary's duties to
notify and assist claimants. 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107, 5126 (West 2002); see Holliday v.
Principi, 14 Vet. App. 280, 284-86 (2001) (holding all
sections of VCAA are retroactive).
The United States Court of Appeals for Veterans Claims
(Court) has concluded that the VCAA was not applicable where
further assistance would not aid the appellant in
substantiating his claim. Wensch v. Principi, 15 Vet App 362
(2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required
to provide assistance "if no reasonable possibility exists
that such assistance would aid in substantiating the
claim"). In view of the Board's favorable decision in this
appeal, further assistance is unnecessary to aid the veteran
in substantiating the portion of his claim adjudicated in
this decision.
Prior decisions of the Board and the RO that are final may be
reopened only upon receipt of additional evidence which,
under applicable statutory and regulatory provisions, is both
new and material so as to warrant revision of the previous
decision. 38 U.S.C.A. §§ 5108, 7104, 7105. "New" evidence
means more than evidence that has not previously been
included in the claims folder, and must be more than merely
redundant and cumulative, in that it presents new
information. Colvin v. Derwinski, 1 Vet. App. 171 (1990).
When determining whether the claimant has submitted new and
material evidence to reopen the claim, consideration must be
given to all of the evidence submitted since the last final
denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996);
Glynn v. Brown, 6 Vet. App. 523 (1994).
The evidence received subsequent to the last final decision
is presumed credible for the purposes of reopening the
appellant's claim unless it is inherently false or untrue, or
it is beyond the competence of the person making the
assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995);
Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also
Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995).
For claims submitted prior to August 29, 2001, new and
material evidence means evidence not previously submitted to
VA decision makers which bears directly and substantially
upon the specific matter under consideration, which is
neither cumulative or redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001).
The Board recognizes that the regulation regarding new and
material evidence has been amended for claims received on or
after August 29, 2001. 66 Fed. Reg. 45,620, 45,630 (Aug. 29,
2001). However, the veteran's claim to reopen was received
prior to August 29, 2001. Therefore, the regulatory
amendment does not apply to consideration of this case. The
Board will consider the claim under the version of 38 C.F.R.
§ 3.156(a) set forth above.
A two-step analysis is conducted on appeals attempting to
reopen a finally denied claim. The Board must first
determine whether the claimant has presented new and material
evidence under 38 C.F.R. § 3.156(a) in order to have a
finally denied claim reopened under 38 U.S.C.A. § 5108.
Then, if new and material evidence has been submitted to
reopen the claim, the Board may then proceed to evaluate the
merits of the claim but only after ensuring that the duty to
assist has been fulfilled. Manio v. Derwinski, 1 Vet.
App. 140 (1991); see also Elkins v. West, 12 Vet. App. 209
(1999); Winters v. West, 12 Vet. App. 203, 206 (1999).
The veteran did not perfect an appeal of the September 1950
rating decision that denied his claim of entitlement to
service connection for chronic bilateral otitis media with
deafness. That rating decision is final. 38 U.S.C.A.
§ 7105; see Vet. Reg. 1008 (Jan. 25, 1936).
In October 1960 the veteran sought to reopen his claim. In
November 1960 the RO informed him that it had found his
application to be a duplicate of the previously submitted
claim, and would take no further action. In February 1961,
he submitted a statement that can be viewed as an application
for review on appeal. 38 U.S.C. § 4005 (1958). Therefore,
the Board does not deem the November 1960 decision to be
final. See Kuo v. Derwinski, 2 Vet. App. 662 (1992) (Court
stated that where an appellant and his representative had not
properly been furnished with an SOC in accordance with 38
U.S.C. § 7105 and the corresponding VA regulations, the
period in which to appeal the adjudicative determination in
question never commenced to run, and that the determination
was, therefore, not final), vacated on other grounds, No. 91-
1053 (1993)(per curiam order) (unpublished).
Pursuant to the Court's holding in Evans v. Brown, 9 Vet.
App. 273 (1996), the Board will consider whether new and
material evidence has been submitted to reopen the claim of
entitlement to service connection for chronic bilateral
otitis media with deafness subsequent to the September 1950
rating decision.
Service connection may be established for a disease or injury
incurred in or aggravated by active service, resulting in a
current disability, or for an injury incurred in or
aggravated in inactive duty training. 38 U.S.C.A. § 101,
1110; 38 C.F.R. §§ 3.303, 3.304. Disability that is
proximately due to or the result of a disease or injury
incurred in or aggravated by service will also be service-
connected. 38 C.F.R. § 3.310.
Service connection may also be established for a chronic
disease manifested to a compensable degree within a
presumptive period following separation from service.
38 C.F.R. §§ 3.307, 3.309. Other organic diseases of the
nervous system are chronic diseases with a presumptive period
of one year. 38 C.F.R. §§ 3.307, 3.309.
Therefore, in order to produce evidence which bears directly
and substantially upon his claim such that it must be
considered to fairly decide the merits of that claim, the
claimant must produce evidence, which in conjunction with the
evidence already of record, shows that chronic otitis media
with deafness was incurred in or aggravated by his service,
is proximately due to or the result of a disease or injury
incurred in or aggravated by service, or that some other
organic disease of the nervous system resulting in deafness
manifested to a compensable degree within one year following
his separation from service.
The evidence received subsequent to the September 1950 rating
decision includes opinions from a private physician dated in
June 2001 and December 2001. These opinions provide medical
evidence as to the relationship between the veteran's hearing
loss and ear disability and his active service. This
evidence is new as it was not previously considered by VA.
It is also presumed credible for the purposes of determining
whether to reopen the appellant's claim.
Furthermore, the veteran has submitted lay statements that
indicate that he did not wear hearing aids prior to entering
service. Those lay statements are also new in that they were
not previously considered by VA and are also presumed
credible for the purposes of determining whether to reopen
the appellant's claim. They relate to the question of
whether there was aggravation of a pre-existing hearing loss.
The private physician's opinions and the lay statements, when
presumed credible, are so significant that they must be
considered in order to fairly decide the merits of the
veteran's claim. Therefore, the Board finds that the veteran
has submitted new and material evidence to reopen his claim
for service connection
Accordingly, the claim of entitlement to service connection
for chronic bilateral otitis media and deafness and that
claim is reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R.
§§ 3.104, 3.156.
ORDER
New and material evidence has been submitted to reopen a
claim of entitlement to service connection for chronic
bilateral otitis media with deafness, and that claim is
reopened.
____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.